Why Rosenstein should name a special counsel

Mar 08, 2017 | 10:43 AM

Deputy AG Confirmation hearing held for Rod Rosenstein. (WJZ)

Republican U.S. Sen. Charles Grassley of Iowa observed during Rod J. Rosenstein's confirmation hearing to become deputy attorney general that "I know of no reason to question his judgment, integrity or impartiality." Neither do we, and we'd like to keep it that way, which is why we hope that once Mr. Rosenstein is confirmed — as he should be — he will agree to appoint a special counsel to look into possible ties between President Donald Trump's campaign and the Russian government.

Mr. Rosenstein took great pains to avoid committing himself on the issue, despite ardent questioning by Senate Democrats during Tuesday's hearing. He insisted that he could not say whether he would take such a step given that he doesn't know all the facts of the investigation, and he voiced his belief that all Department of Justice investigations are independent whether they involve a special prosecutor or not.

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Because Mr. Rosenstein's prospective boss, Attorney General Jeff Sessions, recused himself from any involvement in the Russia probe after revelations that he had failed to disclose his own contact with the Russian ambassador when questioned about it during his confirmation hearing, the responsibility for overseeing the investigation falls to the long-time U.S. attorney for Maryland. Given the circumstances, we believe that will put him in an untenable position — even if he can conduct a fair and impartial probe, the chances that a highly polarized public will accept its results are slim.

We agree, again, with Senator Grassley that "any insinuation that Mr. Rosenstein lacks the impartiality or professionalism necessary to handle these matters is out of line." Indeed; he would be an ideal person to handle such a probe. He is a George W. Bush appointee who served in a heavily Democratic state throughout the Obama administration, earning a sterling reputation for non-partisanship and solid working relationships across political lines. If we were appointing a special counsel to look into the Trump-Russia connection, he would be at the top of the list. It's not Mr. Rosenstein who is the problem; it's the position he's about to take.

President Trump has shown little interest in the independence of the other two branches of government, much less his own Justice Department. In just two months since Mr. Trump took office, we've got two examples to prove the point.

It's not so surprising that President Trump fired acting Attorney General Sally Yates in January after she refused to defend the initial version of the president's travel ban on the (quite correct) grounds that it was unconstitutional. As an Obama holdover, she was not long for Trump-world anyway. But he did it in a way that sent a message to all other career employees throughout the government that independent judgment counter to his interests would result in withering pressure. President Trump not only dismissed her but accused her of having "betrayed" the country and being "weak on borders and very weak on illegal immigration."

Attorney General Sessions didn't lose his job after he announced that he would recuse himself from the Trump-Russia probe, a decision he says he made after consultation with career professionals in the department. But the president, who had been arguing publicly that there was no need for him to do so, was reportedly enraged by the decision. His tirade appears to have sparked a chain of events that ended with him tweeting on Saturday morning the outrageous accusation that former President Barack Obama had tapped his phones in Trump Tower during the campaign.

This is not a guy who likes his subordinates to think for themselves, and the public is catching on. A Politico/Morning Consult poll released today found that 56 percent of registered voters support the appointment of a special counsel to investigate possible Trump-Russia ties, with 30 percent opposed. What's more interesting is this: Only 16 percent of Republicans believe Russia influenced the election, but 39 percent want a special counsel to look into it. Even many of those who believe there is nothing to find recognize the value of having someone who doesn't answer directly to Mr. Trump doing the digging.

The fact that former Attorney General Loretta Lynch chose not to appoint a special counsel, which Mr. Rosenstein noted in his testimony, is irrelevant. For her to have done so would have been instantly viewed as a partisan move. But the situation now is almost identical to the one in 2003 when, with a Republican president, House and Senate and an attorney general who had recused himself due to conflicts of interest, then-Deputy Attorney General (now FBI Director) James Comey appointed a special counsel to look into the leak of CIA agent Valerie Plame's identity.

The matter at hand now is even more serious, and the risk of actual or perceived conflicts of interest is greater. Mr. Rosenstein could put the public's minds at ease — and prevent a lot of headaches for himself — by following Mr. Comey's example.